An Update on Forfeiture’s Terrible Twosome – Coping With Waiver and Applications For Relief

Contents

The landlord of commercial property who believes that the right to forfeit a lease is the ultimate big stick is likely to have a rude awakening.  Under the law as it stands (the Law Commission’s reform proposals still await action), the landlord may discover that the right has been waived by its managing agents, solicitors, or others, before the landlord was even aware that it existed.  How to avoid that can be easily explained, though putting it into practice may not be straightforward.  Even when the right has been preserved, and effectively exercised, the ghost of the old lease can still come back to haunt the landlord in the form of applications for relief from forfeiture, whether made by the tenant, sub-tenants, or a chargee.  The outcome of applications for relief may not be easy to predict, and it is not always clear when it becomes too late to make one, so this can be a real problem in putting new lettings in place.  Whether surveyor or solicitor, you need a practical appreciation of the law in these key areas, and how to manage the risks.

Learning Objectives

As a result of watching this video, delegates will:

• Understand what amounts to a waiver of the right to forfeit, by reference to the time when the right to forfeit arose, and the time when knowledge of the right was gained
• Identify steps and protocols to minimise the risk of waiver so far as possible
• Appreciate which parties may have the ability to obtain relief from forfeiture, and the requirements for a successful application
• Be able to negotiate letting terms so as to minimise exposure to the uncertainty of relief applications
• Understand the appropriate method of documenting relief from forfeiture, and why pressure to grant relief informally should be resisted

Speaker

MARK SHELTON

Mark Shelton has worked in major commercial law firms for 30 years.  As a property litigator he worked at Linklaters, and was later a partner at Lawrence Graham.  He has acted for clients including Land Securities, British Land, Allied Dunbar Assurance, J Sainsbury plc and the Burton Group, gaining experience of the full range of contentious work in a commercial property context.

More recently he has practised as a professional support lawyer, working at DLA Piper and Eversheds, and now works freelance as a legal trainer.  He is also the author of The Lease Guide website.  Outside work, he does his best to reconcile an enthusiasm for wine and cuisine with an equal enthusiasm for cycling and triathlon.